Judge offers more clarity on booted jurors

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The Ghost Ship warehouse is seen this aerial view from 31st Avenue and International Boulevard in the Fruitvale district of Oakland, Calif., on Wednesday, Nov. 22, 2017. The area to the bottom right is where the makeshift staircase to the second floor was located. Dec. 2 marks the one-year anniversary of the deadly fire which killed 36 people. (Jane Tyska/Bay Area News Group)

OAKLAND — At least two of the three jurors booted from the Ghost Ship warehouse trial also could be held in contempt of the court, the judge said in court on Tuesday.

Alameda County Superior Court Judge Trina Thompson provided a little more clarity in her comments to defense attorneys and prosecutors in open court on Tuesday morning regarding the dismissal of three jurors Monday afternoon. Because three were dismissed, and alternates took their place, the 12-person jury had to restart their deliberations from scratch Monday in the trial of Derick Almena and Max Harris, each charged with 36 involuntary manslaughter charges related to the fatal fire. Monday marked what would have been the 10th day of deliberations.

The two men are on trial for the deaths of three dozen people in the Fruitvale district warehouse fire on Dec. 2, 2016, during a dance party event.

Judge Thompson referred to the juror misconduct and the possibility that the dismissed jurors could be held “in contempt, in violation of a court order.” There were at least two offending jurors that violated such an order, potentially over unauthorized communication. The third juror may have known about the misconduct, but did not immediately report it, according to the hearing. The judge said she issued a court order for that third juror to provide copies of any communication that was received within five days.

It’s not clear exactly what the violation was; the specifics were discussed in closed session between the attorneys and the judge.

Being found guilty of contempt of the court could mean the unidentified offending jurors could receive fines or jail time, depending on the circumstances and the offense. The judge referred to a future court date for the jurors, but did not specify when that would be.

Longtime private defense attorney William Cole spoke to media in the courthouse Tuesday morning, and said being held in contempt is very rare, and he has never heard it happening before related to jury misconduct.

“It seems unlikely that the county is going to start prosecuting jurors for who knows what,” he said. “But this certainly puts a serious crimp in the trial; it’s now in jeopardy.”

He said that attorneys could agree to an 11-person jury, if it comes down to it. However, both sides would have to agree, which might be difficult.

The alleged jury misconduct occurred late Thursday afternoon. Judge Thompson also referred to one instance when a juror received a text message, telling them about a news story reporting that a juror had arrived late one day. However, this tidbit might have been innocuous and not the main reason for the jury misconduct.

All day Monday, jurors had been called one by one into the courtroom in a closed session hearing. Three female jurors were dismissed, and replaced by two men and one woman alternates.

The judge said the apparent misconduct did not invade the process of the deliberations, and found that the remaining jurors could remain on the panel.

Now, with just one alternate left, there’s a “high probability” that the last alternate may be called into duty, depending on scheduling conflicts, the judge said. On Tuesday morning, Judge Thompson said the court received at least six notes from the current jury, at least two of whom had previous travel arrangements in September. She asked jurors to provide documentation of itineraries and non-refundable ticket information in order to make a final decision.

The judge’s admonishments to the jury included telling them not to discuss the case with anyone, including a spouse or spiritual adviser, or even other jurors outside of deliberations. Jurors are not to read, watch or listen to any news media related to the case, and are told to walk away or stop the conversation if anyone discusses the case with them.

Jurors will now remain sequestered during their lunch breaks, and can also now deliberate during the two-hour lunch break, if they so choose. In the past, jurors have been seen leaving the courthouse during lunch.

In her comments to the jury, Judge Thompson said she gets asked daily by colleagues when the jury could come to a decision.

“I told them it’s not a C-section, it’s a natural birth. And that baby will arrive when it arrives,” Judge Thompson said, as the courtroom erupted in laughter.